Growcott v Glaze Auto Parts Ltd – costs in the Employment Tribunal

Mrs Growcott (“the Claimant”) was employed by Glaze Auto Parts Ltd (“the Respondent”). She was employed as a delivery driver by the Respondent. On 18 December 2009 it was alleged that she had used foul and abusive language towards the employees of a major customer of the Respondent. She was investigated, attended a disciplinary hearing, and was dismissed for gross misconduct. She appealed but her appeal was dismissed.

The Claimant subsequently submitted an ET1 claim for unfair dismissal. She believed that the disciplinary process was unfair because the two men who had made the allegations against her had not been called at the disciplinary hearing to give live evidence.

The Respondent warned the Claimant by letter on 14 June 2010 that the claim was misconceived and that her claim did not have a reasonable prospect of success. The letter was a thoughtful, reasonable one and concisely set out the law for the Claimant, reaching the conclusion that her claim was misconceived. The Claimant, however, continued to pursue the matter past this date.

At the Employment Tribunal the Claimant failed in her claim for unfair dismissal. The Respondent applied for costs at the Tribunal on the basis that the claim was initially misconceived and, further, that it was unreasonable for the Claimant to have pursued the claim past 14 June 2010. The Employment Tribunal allowed the application for costs and ordered the Claimant to pay £1,972.50 in costs. The Claimant appealed this.

The law relating to costs in the Employment Tribunal

The Employment Tribunal has the power to make costs orders under the Employment Tribunal Rules of Procedure (“ET Rules”), which are contained within the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (“ET Regulations”).

Costs are the exception, not the rule, in the Employment Tribunal. Under rules 40(2) and (3) of the ET Rules the Tribunal has the power to award costs if one of the party’s to the proceedings has acted vexatiously, abusively, disruptively, or otherwise unreasonably, or that the bringing or conducting of the claim has been misconceived. If the Tribunal determines that the conduct falls within this ambit then it must decide whether to exercise its discretion to award costs in that instance. Again, the hurdle to costs being awarded in both instances is high.

Application of the facts to the law

The Respondent applied for costs on the basis that the Claimant’s claim was misconceived from the start and, secondly, it was misconceived and unreasonable from the date of its letter to her in June 2010. The Employment Tribunal found that the Claimant’s conduct had been misconceived at least from the date of the letter.

The Employment Appeal Tribunal upheld the Employment Tribunal’s decision. It deemed that the awarding of costs was within the Employment Tribunal’s discretion and that there had been no error of law in applying its power to award costs.

Our thoughts on Growcott v Glaze Auto Parts Ltd

Cost awards are unusual in the Employment Tribunal and are awarded in less than 1% of cases. However, Claimants (and Respondents) should always be aware of the risk of costs and should obtain specialist legal advice to determine whether the bringing, conducting or defending of the claim may trigger the Employment Tribunal’s power to award costs. Further points are listed below.

Claimant solicitors must be wary if their clients are too over-zealous in their approach to their claim. Although the issue of employment law (and the claims that emanate from employment contexts) can be emotive ones, it is important that the Claimant recognises at an early stage that their claim may fail and that they should be reasonable in their approach to it.

Claimants must bear in mind that if their claim does not appear to have reasonable prospects of success then they should be wary of pursuing the claim, especially if they have been warned that an application for costs may be made.

It is unclear whether the Claimant was represented in this matter. If she wasn’t, then it may be unfair on the Claimant – who is not expert in the law – to penalise her. The Respondent had greater resources at its disposal and it is not inconceivable that the Respondent’s solicitors may try to put Claimant’s off by threatening them with an application for costs.

Witnesses who are not employees of the Respondent cannot be compelled to attend disciplinary hearings or give any form of evidence. Failure to present such evidence by the Respondent may not necessarily therefore be unfair to the Claimant. However, failure to even attempt to canvas their views may constitute unfairness.

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog.
Contact Chris by emailing him at chadrill@redmans.co.uk

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